This
matter is before the Court upon petitioner Eric E.
Strong's response to this Court's November 27, 2017
Order directing him to show cause why his petition should not
be dismissed as untimely. After reviewing and considering
petitioner's response, I conclude that the petition is
subject to dismissal because it is barred by the statute of
limitations, and the doctrine of equitable tolling is
inapplicable. I will therefore dismiss the petition without
further proceedings.

Background

As set
forth in detail in my November 27, 2017 order, petitioner
filed the instant petition after the expiration of the
limitations period set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").
Briefly, however, the relevant dates are as follows. The
one-year period within which petitioner had to file a
petition for writ of habeas corpus commenced on December 19,
2014. The limitations period was tolled from February 20,
2015 (the date petitioner filed his motion for
post-conviction relief) through December 15, 2016 (the date
the Missouri Court of Appeals issued its mandate denying
petitioner's appeal thereof).[1] Because 63 days elapsed
between the date petitioner's conviction became final and
the date he filed his postconviction motion, the instant
petition was due to be filed in this Court not later than
October 13, 2017. However, petitioner did not file it until
November 15, 2017, more than one month later.

In my
November 27, 2017 Order, I directed petitioner to show cause
why his petition should not be dismissed as untimely. In
response, petitioner avers that he received a letter from his
"former court-appointed assistant public defender of the
Appellate/PCR Division of the Public Defender System of the
city of St. Louis, " informing him that the Missouri
Court of Appeals issued the mandate in his post-conviction
appeal on December 15, 2016. (Docket No. 6 at 1). Petitioner
argues that "the letter expresses my federal writ for
habeas relief would be December 17, 2017, " and that he
filed his petition "in this Court on November 17, 2017,
which is one whole month ahead of my one year limitation
deadline." Id. Petitioner attached a copy of a
December 16, 2016 letter signed by District Defender Gwenda
Robinson, informing petitioner that that the mandate was
issued in his case on December 15, 2016, and advising him
that if he wished to pursue federal habeas relief, he
"must do so within the time limitations specified in my
letter to you dated November 28, 2016." (Docket No. 6,
Attch. 1).

Discussion

The
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") requires a federal habeas petition to be
filed within one year after the petitioner's state
conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).
Petitioner is correct that he filed the instant petition
within one year of the date the Missouri Court of Appeals
issued its mandate in his post-conviction appellate
proceedings. However, petitioner fails to recognize that the
63 days that elapsed between the date his conviction became
final and the date he filed his motion for post-conviction
relief count against the one-year limitations period.
Totaling that 63-day period with the 335-day period that
elapsed subsequent to the conclusion of post-conviction
appellate review, the sum of 398 days elapsed prior to the
filing of the instant petition. Accordingly, the petition was
untimely filed under the provisions of § 2241(d)(1)(A).

In
appropriate cases, § 2244(d) is subject to equitable
tolling. Holland v. Florida,560 U.S. 631, 645
(2010); see also Jihad v. Hvass,267 F.3d 803, 805
(8th Cir. 2001). There are two tests for determining when
equitable tolling is appropriate: (1) if petitioner was
diligently pursuing his rights and "extraordinary
circumstances" beyond his control stood in his way and
prevented timely filing, Holland, 560 U.S. at 649,
or (2) if the government's conduct "lulled" the
petitioner into inaction through reliance on that conduct.
U.S. v. Hernandez,436 F.3d 851, 858 (8th Cir.
2006). Equitable tolling is an "exceedingly narrow
window of relief." Jihad, 267 F.3d at 805.

In this
case, petitioner can be understood to argue that his
post-conviction attorney implied that petitioner had one year
from the date the Court of Appeals issued its mandate within
which to seek federal habeas review. I will assume, for the
sake of argument, that petitioner was diligently pursuing his
rights. However, even if petitioner's attorney had
expressly stated that petitioner had until December of 2017
to file his habeas petition, "attorney negligence is not
an extraordinary circumstance warranting equitable
tolling." Holland, 560 U.S. at 655; see
also Beery v. Ault,312 F.3d 948, 951 (8th Cir. 2002)
(In general, ineffective assistance of counsel does not
warrant equitable tolling). In addition, there is no
constitutional right to counsel in seeking state
post-conviction relief. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987).

In
Lawrence v. Florida,549 U.S. 327 (2007), the
Supreme Court expressly rejected a petitioner's argument
that his attorney's mistake in calculating the
limitations period amounted to extraordinary circumstances
justifying equitable tolling. In so holding, the Court wrote:
"[a]ttorney miscalculation is simply not sufficient to
warrant equitable tolling, particularly in the postconviction
context where prisoners have no constitutional right to
counsel." Id. at 336-37. The rationale for this
conclusion, the Holland Court later explained, is
that the mistakes of counsel are constructively attributed to
his or her client, at least in the post-conviction context.
Holland, 560 U.S. at 656.

The
Eighth Circuit has also recognized that counsel's
confusion about, or mistake in calculating, the AEDPA's
statutory provisions does not constitute extraordinary
circumstances external to petitioner justifying equitable
tolling:

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To the
extent petitioner can be understood to argue that his
post-conviction attorney gave him bad advice regarding the
statute of limitations, this does not amount to an
extraordinary circumstance justifying the application of
equitable tolling. In addition, petitioner does not allege,
nor does the record suggest, that the state lulled him into
inaction, and it cannot be said that petitioner&#39;s failure
to file the instant petition within the one-year AEDPA
statute of limitations is attributable to the state. See
Holland, 560 U.S. at 656 (mistakes of counsel are
constructively attributed to his or her ...

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